Todd Roberts v. Springfield Utility Board

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD ROBERTS, No. 21-36052
Plaintiff-Appellant, D.C. No. 6:19-cv-
01595-MC
v.
SPRINGFIELD UTILITY BOARD, a OPINION
Public Body; JEFF NELSON, in his
individual capacity; BOB FONDREN,
in his individual capacity; KATHY
PECK, in her individual capacity;
DIAN RUBANOFF, in her individual
capacity; JANIS BREW, in her
individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted February 6, 2023
Portland, Oregon
Filed May 12, 2023
2 ROBERTS V. SPRINGFIELD UTILITY BD.
Before: MILAN D. SMITH, JR., DANIELLE J.
FORREST, and JENNIFER SUNG, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY *
Civil Rights
The panel affirmed the district court’s summary
judgment in favor of defendants in an action brought
pursuant to 42 U.S.C. § 1983 alleging, in part, First
Amendment violations when plaintiff’s former employer,
the Springfield Utility Board, restricted him from speaking
with potential witnesses and other employees as part of an
internal investigation into plaintiff’s alleged misconduct.
The panel held that the communication restriction
complained of by plaintiff did not violate the First
Amendment because it did not limit plaintiff’s ability to
speak about matters of public concern. Nothing in
defendants’ instructions barred him from speaking about any
alleged mismanagement at the Springfield Utility Board or
other topics that would potentially relate to a matter of public
concern. Rather, the restrictions merely barred him from
personally discussing his own alleged violation of
Springfield Utility Board policies—a matter of private,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROBERTS V. SPRINGFIELD UTILITY BD. 3
personal concern—with potential witnesses or fellow
Springfield Utility Board employees.
The panel addressed the remainder of the issues in a
concurrently filed memorandum disposition.
COUNSEL
Robert E. Franz Jr. (argued), Law Office of Robert E. Franz
Jr., Springfield, Oregon, for Plaintiff-Appellant.
Beth F. Plass (argued) and Karen M. Vickers, Vickers Plass
LLC, Lake Owego, Oregon, for Defendants-Appellees
Springfield Utility Board, Jeff Nelson, Bob Fondren, and
Janis Brew.
Janet M. Schroer (argued) and Ruth A. Casby, Hart Wagner
LLP, Portland, Oregon, for Defendants-Appellees Kathy
Peck and Dian Rubanoff.
OPINION
M. SMITH, Circuit Judge:
Todd Roberts previously worked for the Springfield
Utility Board (SUB). As part of an internal investigation
into Roberts’ alleged misconduct, SUB restricted Roberts
from speaking with potential witnesses and other SUB
employees regarding the subject of the investigation while it
was underway. Roberts sued SUB, certain SUB employees,
and SUB’s retained counsel pursuant to 42 U.S.C. § 1983,
alleging that the investigation-related speech restrictions
4 ROBERTS V. SPRINGFIELD UTILITY BD.
violated the First Amendment. The district court granted
summary judgment in favor of Defendants, and Roberts
appealed.
We hold that the communication restriction complained
of by Roberts does not violate the First Amendment because
it did not limit Roberts’ ability to speak about matters of
public concern. Rather, it merely barred him personally
from discussing his own alleged violation of SUB policies—
a matter of private, personal concern—with potential
witnesses or fellow SUB employees. This restriction did not
violate the First Amendment. We therefore affirm. 1
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
For over two years, Todd Roberts worked as a Safety and
Environmental Coordinator for SUB. During that time, SUB
policy stated that “[e]mployees are expected to keep
unscheduled absences and tardiness to a minimum by
making every effort to arrive to work as scheduled and return
from meal and rest periods on time.” SUB further required
that “[e]xcept in emergency or illness situations, requests for
[time off] . . . must be submitted to an employee’s supervisor
in advance.” SUB policy also warned that “[d]ishonesty of
any type including falsifying any document or verbal
misrepresentations” is a violation that “should generally
result in immediate dismissal.”
In August 2019, Roberts took unscheduled time off.
That morning, Roberts emailed SUB’s HR Manager: “I will
be out all today working on the kids school/sport
1
We address the remainder of the issues Roberts raised on appeal in a
concurrently filed memorandum disposition.
ROBERTS V. SPRINGFIELD UTILITY BD. 5
registrations and such to ensure they are all ready for school
next week.” Four minutes later, however, Roberts emailed
a co-worker: “I’m looking at your boat’s slip right now
headed to the Pig N Pancake.” The record indicates that
Roberts later attempted to delete this email.
After discovering that Roberts may have misrepresented
the reason for his absence from work, SUB hired two
attorneys, Kathy Peck and Dian Rubanoff. SUB retained
Rubanoff to investigate Roberts’ suspected “dishonesty
related to [his] work attendance.” It also retained Peck to
provide legal advice during that investigation.
In September 2019, SUB placed Roberts on paid
administrative leave pending an investigation into whether
he had been truthful about his unscheduled time off. The
Notice of Paid Administrative Leave from Defendant Bob
Fondren, SUB’s Finance Director, read:
“While this matter is being investigated, you
are prohibited from engaging in
communication in any form with any
employees of SUB other than me, unless you
have received prior written permission from
me for such communications. Any contact
with SUB employees, including your
supervisor, regarding this matter will
constitute gross insubordination and be
subject to disciplinary action, including
immediate termination of employment. The
directives above are not intended to limit
your ability to provide information on your
own behalf. You will be given an
opportunity to respond to any claims made
against you.” (Emphasis added.)
6 ROBERTS V. SPRINGFIELD UTILITY BD.
Rubanoff then interviewed Roberts twice. At the
beginning of the first interview, Rubanoff instructed
Roberts:
“To protect the integrity of the investigation,
you are restricted from discussing it with
other employees of SUB while it is ongoing,
current or former employees. You have
received a separate notice of paid
administrative leave, and nothing in my
introductory notes here is intended to change
any instructions you were given in that
notice.” (Emphasis added.)
After that interview, Roberts’ attorney sent Rubanoff an
email requesting that SUB remove the communication
restriction on Roberts on the basis that it prevented him from
gathering information for his defense. SUB declined the
request.
During Roberts’ second interview, Rubanoff repeated
her instruction not to speak with potential witnesses about
the investigation:
“I’m going to instruct you not to
communicate with any potential witnesses
about the information that you’ve given . . .
Do not communicate with potential
witnesses we’ve discussed about the
investigation or about the information
you’ve provided in the investigation[.]”
(Emphasis added.)
Rubanoff clarified that the communication restriction
applied only during the pendency of the investigation, did
ROBERTS V. SPRINGFIELD UTILITY BD. 7
not apply to Roberts’ discussions with his wife, did not
prevent Roberts’ attorney from contacting witnesses on
Roberts’ behalf, and that Roberts would have the
opportunity to contact potential witnesses upon the
conclusion of the investigation. She further indicated that
the restriction was intended to prevent Roberts from
potentially interfering with witness statements.
In December 2019, SUB issued a Notice of Proposed
Termination to Roberts, which described the findings of the
investigation and the policies SUB determined that Roberts
had violated. The notice informed Roberts of the date and
time of his pre-termination meeting, which Roberts did not
attend. SUB then tendered a Notice of Termination to
Roberts the day after his pre-termination meeting was
scheduled, informing him of his right to seek review of the
decision in a post-termination hearing. Roberts did not seek
review of his firing in a post-termination hearing.
B. Procedural History
During the pendency of SUB’s investigation into his
conduct, Roberts filed the present lawsuit. Relevant here,
Roberts asserts a claim pursuant to 42 U.S.C. § 1983 that
Defendants—SUB, certain SUB employees, and SUB’s
retained counsel—violated his First Amendment right to free
speech by instructing him not to speak with other SUB
employees during the pendency of the investigation. The
district court granted summary judgment in favor of
Defendants. It assumed that SUB’s instructions limited
Roberts’ ability to speak on matters of public concern but
determined that the restriction was nonetheless permissible
because it served SUB’s legitimate interest in preventing
interference with the ongoing investigation into his alleged
misconduct. Roberts now appeals.
8 ROBERTS V. SPRINGFIELD UTILITY BD.
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a district court’s decision to grant summary judgment
de novo, and we may affirm on any ground supported by the
record. Barone v. City of Springfield, 902 F.3d 1091, 1097
(9th Cir. 2018).
ANALYSIS
The limited speech restrictions that SUB placed on
Roberts during the pendency of its internal investigation into
his alleged misconduct did not violate the First
Amendment. 2 A public employer “may impose restraints on
the job-related speech of public employees that would be
plainly unconstitutional if applied to the public at large.”
United States v. Nat’l Treasury Emps. Union (NTEU), 513
U.S. 454, 465 (1995). When evaluating such government-
employer restraints, we apply the two-step balancing test
derived from Pickering v. Board of Education, 391 U.S. 563(1968), and its progeny. We first look to “whether the
employee spoke as a citizen on a matter of public concern.”
See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If so,
we then consider “whether the relevant government entity
had an adequate justification for treating the employee
differently from any other member of the general public.”
Id. If, on the other hand, the speech did not address a matter
of public concern, the employee simply has no First
2
To state a claim pursuant to § 1983, a plaintiff must allege defendants
acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640
(1980). As a general matter, a person acts under color of state law if her
conduct is “fairly attributable to the State.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937–38 (1982). We assume without deciding that
Peck and Rubanoff are state actors for the purpose of analyzing whether
Roberts can establish § 1983 liability.
ROBERTS V. SPRINGFIELD UTILITY BD. 9
Amendment cause of action under Pickering. Id.; see also
Connick v. Myers, 461 U.S. 138, 146 (1983) (concluding that
if a plaintiff’s speech “cannot be fairly characterized as
constituting speech on a matter of public concern, it is
unnecessary for [a court] to scrutinize the reasons for her
discharge”).
“Speech involves matters of public concern when it can
be fairly considered as relating to any matter of political,
social, or other concern to the community, or when it is a
subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public.”
Lane v. Franks, 573 U.S. 228, 241 (2014) (cleaned up).
“Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and
context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147–48. “Speech that deals
with ‘individual personnel disputes and grievances’ and that
would be of ‘no relevance to the public’s evaluation of the
performance of governmental agencies’ is generally not of
‘public concern.’” Coszalter v. City of Salem, 320 F.3d 968,
973 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705
F.2d 1110, 1114 (9th Cir. 1983)); see also Connick, 461 U.S.
at 147–48 (determining that communications regarding an
employee’s various workplace grievances did not constitute
matters of public concern).
Where, as here, a public employer instructs an employee
not to communicate with potential witnesses regarding a
workplace misconduct investigation during the pendency of
that investigation, the impacted speech generally is not on a
matter of public concern under Pickering. Here, the
communication restriction affected Roberts’ personal ability
to discuss only the investigation into his own alleged
violation of SUB personnel policies governing time off and
10 ROBERTS V. SPRINGFIELD UTILITY BD.
employee dishonesty. Further undercutting Roberts’ claim,
his attorney was not restricted from contacting any SUB
employees about Roberts’ alleged actions during the
pendency of the investigation. Any speech impacted by
SUB’s instruction concerned a quintessential “individual
personnel dispute[]” that is of “no relevance to the public’s
evaluation of [SUB’s] performance.” Coszalter, 320 F.3d at
973.
Roberts resists this conclusion by arguing that the
communication restriction was “[not] limited to topics
relating to the investigation” and “covered all speech” with
“his co-employees,” including speech regarding the “abuse
of employees by management, mismanagement of funds,
and hostilities in the workplace created by management.”
But this mischaracterizes the record. Contrary to Roberts’
assertions, nothing in Defendants’ instructions barred him
from speaking about any alleged mismanagement at SUB or
other topics that would potentially relate to a matter of public
concern. Instead, the restriction placed on Roberts’ speech
pertained only to communication with SUB employees or
other potential witnesses regarding the ongoing
investigation into his alleged misconduct. Roberts was free
to speak with fellow employees—or anyone else—regarding
SUB’s “performance” of its duties had he wished to do so.
See Coszalter, 320 F.3d at 973. Accordingly, his First
Amendment claim fails.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment in favor of Defendants is AFFIRMED.